Freeman (Jacoby) v. State ( 2013 )

 Freeman next contends that the district court erred by not
conducting an evidentiary hearing on his claim that the guilty plea was
not knowingly entered because counsel misinformed him regarding the
number of counts he was pleading guilty to. We conclude that Freeman
fails to demonstrate that the district court abused its discretion by not
conducting an evidentiary hearing. See NRS 34.770(2); Nika v. State, 124
Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008) (holding that a petitioner is
entitled to an evidentiary hearing only when specific factual allegations
are asserted "that are not belied or repelled by the record and that, if true,
would entitle him to relief").
Freeman also asserts that the district court conducted an
improper ex parte hearing on his claim of an unknowing plea in violation
of his constitutional right to be present. 2 While Freeman cites to authority
explaining a defendant's constitutional right to be personally present
during trial proceedings, he fails to provide any authority or argument in
support of his contention that he had a constitutional right to be present
during the post-conviction proceedings. See Maresca v. State, 103 Nev.
669, 673, 748 P.2d 3, 6 (1987). Moreover, because the district court did not
receive evidence or testimony during the hearing and the transcript does
not indicate that the State presented any argument, Freeman fails to
demonstrate any resulting prejudice. Cf. Kirksey v. State, 112 Nev. 980,
1000, 923 P.2d 1102, 1115 (1996) (the denial of the right to be present at
critical stage of criminal proceedings is subject to harmless-error review);
see also Gebers v. State, 118 Nev. 500, 503-04, 50 P.3d 1092, 1094 (2002) (a
2 Thishearing was presided over by the Honorable Valerie Vega,
District Judge.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
post-conviction habeas petitioner has a statutory right to be present if the
district court conducts an evidentiary hearing). We conclude that
Freeman is not entitled to relief on this claim.
Last, Freeman asserts that the district court erred by denying
his claims that counsel was ineffective for (1) failing to file a direct appeal
because he inquired about his ability to file an appeal and expressed
dissatisfaction with the sentence, (2) failing to advise him that he had the
right to appeal his conviction, and (3) misadvising him that he waived the
right to appeal by entering a guilty plea. Freeman did not expressly
assert that counsel was ineffective for these reasons in the district court
and the district court's order does not specifically address these claims.
We decline to consider them for the first time on appeal. See Ford, 111
Nev. at 884, 901 P.2d at 130. We also decline the State's request to
reconsider our jurisprudence holding that counsel is required to file an
appeal whenever a defendant requests that one be filed, regardless of
merit. See, e.g., Davis v. State, 115 Nev. 17, 20, 974 P.2d 658, 660 (1999).
ORDER the judgment of the district court AFFIRMED. 3
Gibbons
, J.
Douglas
3 Although we filed the fast track response submitted by the State, it
does not comply with NRAP 3C(h)(1) and NRAP 32(a)(4) because it is not
double-spaced. We caution the State that future failure to comply with
applicable rules may result in the imposition of sanctions. NRAP 3C(n).
SUPREME COURT
OF
NEVADA
3
(0) 1947A
cc: Hon. Elissa F. Cadish, District Judge
Hon. Valorie J. Vega, District Judge
Oronoz & Ericsson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A